JAN E. DuBOIS, District Judge.
On July 9 and July 17, 2012, pro se defendant Lee Davis, Jr. plead guilty, pursuant to a Plea Agreement, to one count of mail fraud, in violation of 18 U.S.C. § 1341, and one count of wire fraud, in violation of 18 U.S.C. § 1343. On November 20, 2012, Davis was sentenced, inter alia, to 77 months' imprisonment. Presently before the Court is Davis' Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("§ 2255 Motion"). For the reasons that follow, Davis' § 2255 Motion is dismissed and denied without an evidentiary hearing.
On May 21, 2009, a Grand Jury in this District returned a six-count Indictment in Criminal No. 09-343 against Davis, charging him with five counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18 U.S.C. § 1341. The charges arose out of Davis' theft of more than $1 million in insurance premiums from his clients for surety bonds and workers' compensation insurance. The case was assigned to this Court.
While awaiting trial, a Grand Jury returned a second Indictment in Criminal Action No. 11-123, charging Davis with eight additional counts of wire fraud, and three additional counts of mail fraud, for a second fraud scheme committed by Davis between September 2009 and November 2010. That case, which was assigned to Judge Juan Sánchez, involved allegations that Davis had made false representations and submitted false documentation to obtain funds from a trust established for his daughter's college education.
Finally, a Grand Jury returned a third Indictment in Criminal No. 12-118, charging Davis with additional counts of wire and mail fraud for a later-discovered fraud scheme executed in late 2011 and 2012. That scheme involved the theft of a $175,000 fee and an attempt to obtain $74,000 in premiums for a fraudulent performance bond created by Davis. That case was assigned to Judge Robert F. Kelly.
In June 2012, Davis was convicted by a jury of all charges set forth in the case before Judge Sánchez, Criminal No. 11-123. Davis subsequently entered into a Plea Agreement with the Government resolving the two remaining cases against him, Criminal Nos. 09-343 and 12-118. Specifically, on July 9, 2012, Davis plead guilty before this Court to one count of wire fraud charged in Criminal No. 09-343, and on July 17, 2012, Davis plead guilty before Judge Kelly to one count of mail fraud charged in Criminal No. 12-118. All other charges against Davis were to be dismissed at sentencing, pursuant to the Plea Agreement.
As part of the Plea Agreement, Davis agreed to waive his right to appeal and collaterally attack his conviction and sentence, subject to a few narrow exceptions applicable only to the appellate waiver. Davis' Plea Agreement, in relevant part, stated:
Guilty Plea Agreement ¶ 11.
At the July 9, 2012 change of plea hearing, the Court engaged in a plea colloquy with Davis pursuant to Federal Rule of Criminal Procedure 11(b).
Id. at 19:19 — 21:4.
Davis informed the Court that he read and understood the Plea Agreement, id. at 21:9-12; that he discussed the Plea Agreement with his counsel, id. at 21:14; that he was satisfied with his counsel, id. at 9:7; and that he signed the Plea Agreement of his own free will, id. at 28:4. Davis also stated that he understood the essential terms of the Plea Agreement, including the waiver provision, as explained by Assistant United States Attorney Costello at the hearing, id. at 23:15, and affirmed that Mr. Costello's explanation of the Plea Agreement was the same as his understanding of the Agreement, id. at 19. Finally, when asked by the Court if he had any questions about the Plea Agreement, Davis stated that he did not. Id. at 23:22.
At the July 17, 2012 change of plea hearing, Judge Robert F. Kelly also engaged in a plea colloquy with Davis pursuant to Federal Rule of Criminal Procedure 11(b).
Davis affirmed that his lawyer explained to him the written Plea Agreement, id. at 8:7, and that he was satisfied with his counsel, id. at 5:5. He also stated that he had signed the Plea Agreement voluntarily, id. at 8:4, and that no one threatened or forced him in any way to enter into his guilty plea, id. at 11:15. Prior to entering his plea, the Court asked Davis if he had any additional questions, to which he responded in the negative. Id. at 15:9.
As relevant to Davis' § 2255 Motion, Criminal Nos. 09-342 and 12-118 were consolidated before this Court for sentencing. Sentencing was conducted on November 30, 2012. At that time, the Court concluded that Davis' applicable guideline range under the United States Sentencing Guidelines ("Sentencing Guidelines") was 70 to 87 months' incarceration, Tr. 11/30/12 at 22, and that the statutory maximum was 40 years' imprisonment. See Presentence Report ¶ 44.
The Court sentenced Davis to concurrent terms of imprisonment of 70 months on Count One of the Indictment in Criminal No. 09-342, and 77 months on Count Five of the Indictment in Criminal No. 12-118. In doing so, the Court stated that the "appropriate total punishment for the two cases" was 77 months, Tr. 11/30/12 at 88-89. The Court also imposed a term of three years' supervised release, $1,964,934.15 in restitution, and a $200 special assessment, Tr. 11/30/12 at 90, 95, 100, 103.
On December 6, 2012, Davis filed Notices of Appeal in the Third Circuit in both cases, and on August 2, 2013, the Third Circuit dismissed the appeals pursuant to Fed. R. App. P. 42(b) upon Davis' motion.
On August 2, 2014,
The Government seeks to enforce the collateral attack waiver in Davis' Plea Agreement. Waivers of the right to collateral review are enforceable "provided that they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice." United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008); see also United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). The Court concludes that Davis' waiver was knowing and voluntary. However, the Court does not reach the issue of whether the enforcement of the waiver as to Davis' ineffective assistance of counsel claims would work a miscarriage of justice in light of the ethical concerns raised by the waiver of such claims and because Davis' ineffective assistance of counsel claims are meritless. This conclusion of the Court leaves open the question whether the Court will enforce the waiver as to Davis' other claims, which do not concern ineffective assistance of counsel. Because the Court concludes that those claims are also totally without merit, see Section III(b) infra, it declines to do so.
Davis does not dispute that he knowingly and voluntarily entered into the collateral attack waiver. The Court nonetheless addresses the issue, and concludes that Davis' waiver was entered into knowingly and voluntarily.
The Plea Agreement contained a clear appellate and collateral attack waiver. Guilty Plea Agreement ¶ 11. Davis stated at his change of plea hearings that he read and understood the Plea Agreement, Tr. 7/9/12 at 21:9; that he signed the Plea Agreement of his own free will, id. at 28:4; Tr. 7/17/12 at 8:4; that his lawyer explained the written Plea Agreement to him, Tr. 7/9/12 at 21:14; Tr. 7/17/12 at 8:7; and that he was satisfied with his counsel, Tr. 7/9/12 at 9:7; Tr. 7/17/12 at 5:5.
At the July 9 and July 17, 2012 change of plea hearings, this Court and Judge Kelly explained to Davis that an appellate and collateral attack waiver provision was included in the Plea Agreement and discussed its consequences. On July 9, 2012, this Court specifically explained that a "waiver . . . means a giving up your right to collaterally attack your conviction or sentence or any other matter relating to your prosecution . . . .," including through the filing of a habeas corpus motion under 28 U.S.C. § 2255. Tr. 7/9/12 at 19:13-17. This Court then explained that the most common form of attack under this statute is an ineffective assistance of counsel claim. Id. at 19:17-19. This Court also reviewed the four narrow exceptions to the waiver. Davis repeatedly affirmed that he understood this Court's explanation of the waiver, and when asked by this Court, "do you understand that when you plead guilty, as you seek to do in this case, you are giving up the right to collaterally attack your sentence or conviction?" Tr. 7/9/12 at 19:19, Davis answered, "Yes, your Honor," id.
On July 17, 2012, Judge Kelly informed Davis that the waiver would "sharply limit [his] appellate rights, specifically, the Plea Agreement states that: [w]ith very limited exceptions, [defendant] give[s] up the right to file any appeal in this case or any later challenge, such as a habeas corpus motion to vacate, set aside or correct the sentence." Tr. 7/17/12 at 9:21. Judge Kelly asked Davis if he understood, and Davis responded affirmatively. Id. Judge Kelly also reviewed the narrow exceptions to the waiver with Davis. Finally, Davis affirmed that no one had threatened or forced him in any way to enter into his guilty plea, id. at 11:15, and that he had no additional questions with respect to the Plea Agreement, id. at 15:9.
In sum, the record is devoid of any evidence that Davis did not knowingly and voluntarily waive his right to collaterally attack his conviction, sentence, or any other matter related to the prosecution of the two cases. To the contrary, the record demonstrates that the Plea Agreement contained a clear collateral attack waiver that this Court and Judge Kelly explained to Davis at the July 9 and July 17, 2012 change of plea hearings, and that Davis confirmed he understood the waiver. Therefore, the Court concludes that Davis made a knowing and voluntary decision to waive his right to collaterally attack his sentences, which he now challenges.
The collateral attack waiver is thus enforceable unless it would result in a miscarriage of justice. In United States v. Khattak, the Third Circuit expressly declined to "earmark specific situations" in which enforcing a waiver would amount to a "miscarriage of justice." 273 F.3d at 563. Instead, the Court adopted the approach used by the First Circuit which identified the following factors for consideration: "`[T]he clarity of the error, its gravity, its character (e.g. whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.'" Id. (quoting United States v. Teeter, 257 F.3d 14, 25-26) (1st Cir. 2001).
The Third Circuit has specifically recognized that enforcing a knowing and voluntary waiver would work a miscarriage of justice in a few limited circumstances, such as where "constitutionally deficient lawyering prevented [defendant] from understanding his plea," United States v. Shedrick, 493 F.3d 292, 298 (3d Cir. 2007), where defendant should have been permitted to withdraw his guilty plea, United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005), and, where, as is relevant to this case, the waiver itself was the product of alleged ineffective assistance of counsel, United States v. Hernandez, 242 F.3d 110, 114 (3d Cir. 2001).
The Third Circuit has thus far declined to hold that waivers encompassing ineffective assistance of counsel claims, such as the one in Davis' Plea Agreement, work a miscarriage of justice. However, it has recognized the ethical concerns raised by their inclusion in plea agreements. United States v. Grimes, 739 F.3d 125, 130 (3d Cir. 2014) (acknowledging the "ethical concerns noted by the National Association of Criminal Defense Lawyers and at least eight states' legal ethics arbiters"). The Court is similarly troubled by the ethical concerns presented by such waivers.
Notably, several courts, and numerous state bar ethics committees, including the Pennsylvania Bar Association ("PBA") Legal Ethics and Professional Responsibility Committee, have concluded that a criminal defense attorney may not ethically advise a client regarding the waiver of claims involving defense counsel's own ineffectiveness and that a prosecutor may not ethically require a defendant to waive such claims. Conflicts of Interest and Other Misconduct Related to Waivers of Claims for Ineffective Assistance of Counsel, Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee, Formal Opinion 2014-100; see United States v. Deluca, No. 08-108, 2012 WL 5902555, at * 10 (E. D. Pa. Nov.26, 2012) (discussing state bar ethics committee opinions); U.S., ex rel. U.S. Attorneys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass'n, 439 S.W.3d 136 (Ky. 2014) (concluding that advising defendant regarding waiver of ineffective assistance of counsel claims in plea agreement by defense attorney and seeking inclusion of such a waiver by prosecutor constitutes professional misconduct).
On October 14, 2014, the United States Department of Justice issued a Memorandum to all federal prosecutors instructing that they should no longer seek to have defendants waive their right to bring ineffective assistance claims on direct appeal or on collateral attack as part of plea agreements. See Memorandum from James M. Cole, Deputy Attorney General, to All Federal Prosecutors (Oct. 14, 2014), available at http://pdfserver.amlaw.com/nlj/DOJ_Ineffective_Assistance_Counsel.pdf. The Court further notes that, after a modification of the waiver provision in 2013, excepting from the waiver claims of ineffective assistance of counsel related to guilty pleas, the U.S. Attorney's Office for the Eastern District of Pennsylvania changed plea agreements so as to exclude from the waiver all ineffective assistance of counsel claims.
Although the Government urges the Court to enforce the waiver in Davis' Plea Agreement as to all of Davis' claims, including his ineffective assistance of counsel claims, the weight of the above-referenced ethics opinions and the change in Department of Justice policy, "gives this Court pause in doing so." Deluca, 2012 WL 5902555, at *10 (declining to address whether enforcing similar waiver would result in miscarriage of justice in light of ethical concerns raised in state bar association ethics opinions); see also Watson v. United States, 682 F.3d 740, 744 (8th Cir. 2012) (declining to decide whether waiver which expressly encompassed ineffective assistance claims would be enforceable in light of ethics opinions where issue had not been addressed by the parties). Moreover, the Court does not address the "miscarriage of justice" issue because, even assuming arguendo that Davis' collateral review waiver is unenforceable, the Court concludes that all of Davis' claims, including those that involve ineffective assistance of counsel claims, and those that do not, lack merit. Thus, Davis' § 2255 Motion is dismissed and denied on that ground.
The Court addresses each of Davis' claims in turn. As Davis' first and fourth claims are related, the Court considers them together.
Davis argues that the amount of the Vorhees Township judgment should not have been included in his restitution amount because he did not enter into a contract with Vorhees Township. Davis also contends that, prior to sentencing, there were "policies written and claims paid," that if considered by the Court, could have resulted in a lesser sentence and reduced or eliminated the restitution amount. To the extent that Davis challenges the restitution amount, Davis' first and fourth claims are dismissed, as challenges to restitution are not cognizable under 28 U.S.C. § 2255. See, e.g., United States v. Robinson, 331 Fed. App'x 907, 908 (3d Cir. 2009) ("[A]n inmate may not challenge the imposition of restitution in a motion to vacate sentence under 28 U.S.C. § 2255."). To the extent that Davis challenges his sentence, he provides no factual or legal support for his assertions. See Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) ("[B]ald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing.").
Davis asserts that he was improperly charged in three separate indictments rather than in a single indictment. The Court rejects this argument. At the outset, the Court notes that "[t]here is no rule requiring compulsory joinder of charges arising out of the same transaction." United States v. Miller, 259 F.Supp. 294, 297 (E.D. Pa. 1966).
In any event, the indictments at issue charged Davis with three separate fraudulent schemes, which occurred during distinct periods of time. See Tr. 11/30/12 at 19-20. While the Government was preparing for trial in Davis' first case, it found out that he "stole from his daughter's trust fund," so it prepared a separate indictment (Indictment No. 11-123) for this crime. Id. at 24. Then, a year later, the Government indicted Davis again in Criminal No. 12-118, after it was revealed that he sold a false surety bond to a customer. Id. Davis' second scheme to defraud, of which he was convicted by a jury, was carried out between September 2009 and November 2010. The conduct charged in Count One of Criminal No. 09-343 occurred from June 2003 to January 2009, and the conduct charged in Count Five of Criminal No. 12-118 occurred on January 25, 2012. Even though Davis' crimes were similar, they were distinct.
Finally, Davis argues that his counsel was constitutionally ineffective in failing to show his prior good acts prior to or at sentencing, including his donations to charities, such as Purple Heart, his involvement in coaching young boys and girls baseball and basketball teams, and his involvement with the Boy and Cub Scouts.
The standard for evaluating an ineffective assistance of counsel claim was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance (1) "fell below an objective standard of reasonableness" under "prevailing professional norms," and (2) that counsel's deficient performance prejudiced the defendant. Id. at 687-88, 922.
When assessing the reasonableness of counsel's performance, the Strickland Court noted that "the difficulties inherent in making the evaluation" necessitate that courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To show prejudice, a petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id.
The Court rejects Davis' claim that counsel was ineffective by failing to show certain prior good acts prior to or at sentencing. Contrary to Davis' assertions, almost all of the positive endeavors he cites in his Motion were in fact presented to the Court prior to sentencing. See Letter of Lauren Davis-Ryan (defendant coached his son's basketball and baseball teams, assisted in his Boy Scout troop, and mentored one of his son's Boy Scout friends); Defendant's Sentencing Memorandum at 1 (defendant "wholeheartedly participated in [his children's education and activities]"), PSR, ¶ 76 (defendant was a coach on his son's baseball team); Letter of Mason Davis (defendant always attended Boy Scout camping trips and helped out coaches on his baseball team). The only specific prior good acts that do not appear to be in the record are Davis' donations to charity. Trial counsel's failure to present this evidence, without more, does not render her performance constitutionally deficient in light of the extensive mitigating evidence that was presented.
Davis has also failed to demonstrate prejudice. The fact that counsel did not present evidence of Davis' charity donations does not undermine the Court's confidence in the imposed sentence in light of the serious impact of Davis' crimes on his victims, and the extensive mitigating evidence actually presented, including, inter alia, evidence with respect to his troubled family history, mental health issues, prior community engagement, and strong family ties. See Porter v. McCollum, 558 U.S. 30, 41 (2009); Strickland, 466 U.S. at 699 (no prejudice shown where "[t]he evidence that respondent says his trial counsel should have offered at the sentencing hearing would barely have altered the sentencing profile presented to the sentencing judge"). Thus, Davis' ineffective assistance of counsel claim fails.
Under § 2255, "the question of whether to order a hearing is committed to the sound discretion of the district court." Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, "the [C]ourt must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief." Id.; see also United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). The Court concludes that there is no need for an evidentiary hearing because the record conclusively establishes that Davis is not entitled to the relief sought in his § 2255 Motion.
A certificate of appealability will not issue because reasonable jurists would not debate (a) this Court's decision that Davis' Motion does not state a valid claim of the denial of a constitutional right, or (b) the propriety of this Court's procedural rulings with respect to Davis' claims. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Morris v. Horn, 187 F.3d 333, 340 (3d Cir. 1999); 28 U.S.C. § 2253(c).
For the foregoing reasons, Davis' Motion to Set Aside, Vacate, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 is dismissed and denied without an evidentiary hearing.
